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Discourse on Access to Justice in India & Rise of Gram Nyayalayas at the Grass-Root

Discourse on Access to Justice in India & Rise of Gram Nyayalayas at the Grass-Root

Nachiketa Mittal is Assistant Professor of Law, National Law University Odisha and presently on deputation in the Supreme Court of India as Assistant Registrar (Research). The views expressed are purely personal and do not in any way reflect the opinion of the institutions with whom the author is working.
Amrita Singh is an independent researcher and alumni of two national law universities in India.

Administration of justice is the primary responsibility of the State. This includes a sacrosanct duty of the State to ensure equal access to legal services by all the citizens. Problem of inequality in accessing justice mechanism at minimum cost has been a widespread problem across almost all democracies globally. India is no exception to this perennial concern. Since independence, India has consistently taken serious efforts in fulfilling its Constitutional mandate of making legal services available to all its citizens by developing institutions like legal aid. Latest legislative action of the Indian parliament in this regard has been an enactment of the Gram Nyayalayas Act, 2008. It carries many progressive provisions to make justice delivery available to the rural poor at the village level in a cost effective and timely manner. This paper discusses the developing discourse on access to justice in India vis-à-vis emergence of Gram Nyayalayas at the grass-root to facilitate doorstep justice delivery.

Introduction

In the last quarter of the century, most common law and civil law world democracies have witnessed an increasing concern of under-delivery on the front of access to justice. David Simmons, former Chief Justice Supreme Court of Barbados observed that:

In the last 25 years, throughout the common law world, traditional arrangements for the delivery of civil justice have come under scrutiny, challenge and change. The search for alternative processes to litigation in the resolution of disputes gained momentum and a great debate has ensued.[i]

There are profound and sufficient reasons for this debate. Much of it has arisen from the over burdening of State courts with case load and proportionately lesser disposal rate. Resultantly, the search for methods beyond the traditional court room advocacy has gained momentum globally. It may eventually also bring within its fold the debate about declining standards of administration of justice.[ii] It is no longer a jurisdiction specific or nation specific problem. Instead, it is a bitter reality of the present legal systems globally.[iii] It probably takes us to the fundamental question that whether the present day judicial system and legal services are competent to deliver the results suited to the specific needs, quick and effective. Ensuring justice to all at minimum cost and within reach is undeniably the ultimate objective which all the legal systems aim to achieve by exploring alternative methods of dispute resolution. The very essence of the term ‘justice’ is not indisputably settled. The concept changes with time and place as is necessary. According to David M. Walker “justice[iv] generally means a moral value commonly considered to be the end which law ought to try to attain, which should realize for the men whose conduct is governed by law, and which is the standard or measure or criterion of goodness in law and conduct, by which it can be criticised or evaluated”.[v] In the Indian context, the Constitution of India, the basic law of the land, in its preamble, stands for securing justice[vi] to all its Citizens. This aspiration is retained again in Article 39A[vii], where the Constitution aspires to secure and promote access to justice to all its citizens, especially to the marginalized ones with, free legal aid by suitable legislation or schemes or in any other way.

The age-old debate of access to justice has time and again acquired attention of both legislature and judiciary for revisiting the level of achievement made so far and gaps that need to be filled especially in a pre-independent era. This concern re-surfaced yet again very recently in the light of Supreme Court’s verdict in the case of Anita Kushwaha vs Pushap Sudan (2016) 8 SCC 509. In this case the Supreme Court examined whether access to justice is indeed a fundamental right. The court also examined jurisprudential aspect of the Right of Access to Justice and its correlation with the right to life. Finally, the Apex Court held that- access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution.[viii] Though this pronouncement of declaring access to justice as a fundamental right has come through a judgement of the highest court of justice more than sixty years after independence but would benefit millions of justice seekers. It may still be noted that serious legislative and judicial efforts have consistently been made for furthering the access to justice even prior to this pronouncement.

This paper would thus trace the concrete steps taken in this regard including the efforts towards establishing mechanism of legal aid in the country and issues of administration of justice which is the driving force for the facilitating access to justice. In the end the paper will identify the recent legislative action taken towards strengthening the grass-root justice delivery and the way forward.

Administration of Justice and Role of State

Beyond the world perspective, even in specific context of India, access to justice has long been a matter of concern. But before we understand further nuances of it, a brief reference is necessary to outline role of State in institutionalising and establishing mechanism for better administration of justice. As justice remains the fundamental value to be achieved, it must be understood that the notion of justice evokes the cognition of the rule of law, of the resolution of conflicts, of institutions that make law and of those who enforce it; it expresses fairness and the implicit recognition of the principle of equality.[ix] Such notion of justice would remain incomplete without the agenda of access to justice imbibed in its spirit. But there would remain a basic question as to what might access to justice entail. So to say, access to courts, access to legal services and access to contemporary techniques of efficient resolution of disputes together constitute the components of a State’s effective system of justice.[x] This in turn reflects that an administration of justice is sine qua non for any legal system to perform in order to ensure coherent and orderly society.[xi] If we revisit the ancient laws and compare with the present day justice system, the legal systems of modern democracies appear to be in utter disarray.[xii] Since the time immemorial relentless efforts have been made to establish order and security in order to ensure the growth of an orderly society for the betterment and welfare of the people. Order means some measure of uniformity, continuity and consistency in the operation of social process.[xiii] Security[xiv] would mean material value which justice in social relations must seek to promote. Safety of the people could be ascertained as the supreme law.[xv] It has been vividly pointed out that:

Human welfare demands at a minimum efficient order to ensure that such basic needs as food production, shelter and child rearing be satisfied, not in a state of constant chaos and conflict, but on a peaceful, orderly basis with a reasonable level of day to day security.[xvi]

Free access to justice delivery services is the cornerstone of every of a truly democratic and civilised modern society. Ensuring uninterrupted justice delivery to all the citizens is the Constitutional obligation of the State. Unbiased, easily accessible and affordable justice delivery is an indicator of an efficient judicial system. By promoting such a service government can ensure that the State’s promise of ‘justice for all’ gets fulfilled towards its citizens satisfactorily.[xvii] Administration of justice becomes the foremost job of the State as Salmond views:

The administration of justice implies the maintenance of right within a political community by means of physical force of the state. Without effective administration of justice one cannot think of the welfare, well-being and order in society.[xviii]

The expression ‘administration of justice’ has a wide meaning, and includes administration of civil as well as criminal justice.[xix] In the present day context we may generally assume that the administration of justice is the chief function of government to be exercised by the State.[xx] Recently in the year 2012, the Supreme Court of India observed that:

It is the responsibility of the State Administration to see that courts function on all working days without any hindrance. The administration of justice should never be stalled at the instance of anyone including the members of the bar even for any cause.[xxi]

In a historic ‘Judges Transfer Case’[xxii] in the year 1982, the seven judges[xxiii] of the Supreme Court of India observed about the responsibility of the State to ensure that justice dispensation is smoothly and effectively discharged in the following words:

In a parliamentary democracy with a written Constitution in which three organs of the Governments are clearly marked out, it becomes a primary duty of the State to provide for fair and efficient administration of justice. Justice must be within the easy reach of the lowest of the lowliest. Rancour of injustice hurts an individual leading to bitterness, resentment and frustration and rapid evaporation of the faith in the institution of judiciary. Two vital limbs of the Justice system are that Justice must be within the easy reach of the weaker sections of the society and that it must be attainable within a reasonably short-time, in other words, speedily…

III. Access to Justice: Acknowledgement by International Instruments & Indian Judiciary

Erecting institutions of justice delivery perhaps is the one of the foremost steps State takes in order to facilitate availability and accessibility of justice delivery services by all. Beyond this basic step, the issue involves multiple implications globally including the nexus between the concept of access to justice and human rights. Therefore, it is imperative to identify the international treaties and conventions which also support a similar view and recognise the same normative value of access to justice. That is, the right of access to justice has been recognised as one of the fundamental and basic human rights in various international covenants and charters.[xxiv] It is common to see that the legal system touches upon the lives of the people in numerous circumstances. There can be instances involving disputes between private parties like employment disputes, matrimonial disputes, debt or mortgage claims, breach of contract, etc. And many a times people can come into conflict with law when they are accused of committing an offence like theft, murder, domestic violence, criminal breach of trust, etc. In either category of circumstances, it is essential that every individual gets access to justice delivery system. This would indeed cover a free and fair access to fair and impartial hearing and access to legal representation. Such access to justice is said to be essential for protecting human rights, both in these situations and in general.[xxv]

Article 14 of the International Covenant on Civil and Political Rights (ICCPR) also recognises access to justice as a basic human right and embraces that in determination of any criminal charge fair and public hearing should be provided by a competent, independent and impartial tribunal established by law.[xxix] The rights of accused and his right to fair hearing and access to justice are also recognised under Article 67 of the Rome Statute of the International Criminal Court.[xxx] Amongst other international statues recognising access to fair hearing as a true indicator of access to justice amounting to protection of human rights, are Article 6 Paragraph 1[xxxi] of the European Convention for the Protection of Human Rights and Fundamental Freedoms which guarantees the right to a fair trial; Article 10 of the Universal Declaration of Human Rights[xxxii].

The identification of access to justice within a larger debate of human rights needs to be now viewed from diverse angles. One of the cardinal issues that have constantly been in debate is the fundamental need of access to legal services by the poor and the marginalised.

Lord Denning has also observed that since the Second World War, the greatest revolution in the field of law has been the system of legal aid. He further states that legal aid means ‘that in many cases the lawyers’ fees and expenses are paid by the State’.[xxxiii] Legal aid is often recognized and traced from the ancient times as the non-negotiable right of every citizen. Thus, it is imperative to remind ourselves of the tenets of the Magna Carta which were formulated over centuries ago. In this context, it is notable the beginning of the equal justice under the law was marked by the inscription in the 40th paragraph of the Charter in the following words:

“No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay rights or justice”.[xxxiv]

Adding to the invaluable tenet of Magna Carta, William J. Bernnan, a U. S. Supreme Court Judge has very aptly emphasised the significance of legal aid in the following words:

Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury and the Poor, who need it most cannot have its expenses puts it beyond their reach, the threat to the continued existence of a free democracy is not imaginary but very real, because democracy’s life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.[xxxv]

In the Indian context, Justice Muralidhar[xxxvi] in his famous work on Access to Justice observes that two basic purposes which are intended to be served by providing access to justice in the form of legal aid are:

To ensure that every person is able to invoke the legal processes for redressal, irrespective of social or economical status or other incapacity; and

That every person should receive a just and fair treatment with the legal system.[xxxvii]

It is true to say that justice is most often claimed by people who are in need and expect fair and effective application of the law. But this necessarily requires a multi-facet approach. Such that there should be a provision of legal aid services, including community legal education, legal assistance and law reform.[xxxviii] The Supreme Court of India in Sheela Barse v. State of Maharashtra[xxxix] emphasized that the provision of legal assistance for a poor or indigent accused arrested was a constitutional imperative mandated not only by Article 39A but also by Articles 14 and 21 of the Constitution. The Apex Court also noted that the absence of such legal assistance would result in grave injustice and that every such act of injustice corrodes the foundation of democracy and rule of law.[xl] Twenty years ago, the Supreme Court of India[xli] while discussing this problem of access to justice observed:

[W]e have to consider the combined effect of Article 21 and Article 39A of the Constitution of India. The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21 of the Constitution. The preamble to the Constitution of India assures ‘justice, social, economic and political’. Article 39A of the Constitution provides ‘equal justice’ and ‘free legal aid’. The State shall secure that the operation of the legal system promotes justice. It means justice according to law. In a democratic polity, governed by rule of law, it should be the main concern of the State, to have a proper legal system………………The principles contained in Article 39A are fundamental and cast a duty on the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way-by legislation or otherwise, so that justice is not denied to any citizen by reason of economic or other disabilities.[xlii]

It is a deep rooted inherent hallmark of our legal system and also a soul of its philosophy that ‘Equal justice’ or equality before the law, regardless of economic status should be promoted by the State. Equal justice should not be understood in a narrow sense of equal opportunity to access the legal system. It also effectively means equal opportunity to secure the advice and services of a lawyer. In majority of the cases, those who are unable to afford legal services, inevitably suffer a denial of equal justice until legal assistance through the channels of public justice system could in any way be facilitated to them.[xliii]

Progress of Legal Aid Movement in India

The recognition of legal assistance to the poor and needy by the international normative order and the India judiciary as discussed above creates a natural environment for a necessary reform to re-structure the public legal services mechanism in India. Multiple factors are responsible for needed change in the civil or public legal services system, such as growing pattern of changes in the practice of law, recently enacted laws affecting disadvantaged and low-income groups, decreasing rate of access to justice delivery system by a common man and growing sense of trust deficit of people in the justice delivery system and its affordability.[xliv] In this context plethora of policy, legislative and judicial actions are on record in India to augment the growth of effective legal aid services in the country. The movement for legal aid in India took off from the rising judicial and academic concern about facilitating equal legal representation to those charged with criminal offences in the court of law.[xlv] The foremost attempt of inclusive probe into the issues of providing free legal assistance took place soon after the independence.[xlvi] Justice P. N. Bhagwati who later became the Chief Justice of the Supreme Court of India, headed the inquiry about legal aid work through the Committee on Legal Aid and Legal Advice in the State of Bombay.[xlvii] Soon after the report of this Committee, the issue of providing for ‘the rule of law in free society’, led to its recognition by the International Commission of Jurists in the year 1959 emphasising on the need for the state to ensure legal counsel to all.[xlviii]

[A] full review of the means to implement this demand was made by the Committee on Legal Aid at the Third All-India Law Conference in 1962 …. [T]he committee outlined a comprehensive national programme providing for the establishment of legal aid committees in all districts of the country. The Committee suggested state participation in the scheme with aid in all criminal cases where the defendant could not engage counsel, and gradual extension of aid in civil cases as well.[xlix]

In keeping with these principles, the Law Ministry of the Government of India in the year 1962 called a conference of State Governments to discuss the possibility of extending legal aid services throughout India in compliance of the State’s obligation. However, financial burden of providing free legal assistance was understood to be big concern at that time and similar concern was expressed by almost all the State Governments.[l] In such critical time, only the Supreme Court of India came to fill the gap and through its rules assured legal aid to be provided at the discretion of the Court in all criminal cases coming before it.[li] Following a series of efforts by the State and the judiciary in India, the National Expert Committee on Legal Aid[lii], comprising eminent public citizens with Justice V R Krishna Iyer as its Chairman,[liii] was constituted by an order dated October 27, 1972. The committee completed its work on May 27, 1973, with the submission of its Legal Aid Expert Committee Report[liv] of 275 pages.[lv] According to Justice P. N. Bhagwati Legal Aid meant construction of a society where administration of justice could be quickly accessible by the justice seekers for timely enforcement of their rights.[lvi] In the year 1980, Government of India by a Resolution dated 26th September, 1980 appointed the “Committee for Implementing Legal Aid Schemes” (CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati (as he then was). This historical aspect has been succinctly reflected in the judgement delivered by the Supreme Court recently in the following words:

The ‘Committee for Implementing Legal Aid Schemes’ (CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati was set up to monitor and implement legal aid programmes on a uniform basis in all the States and Union territories. CILAS evolved a model scheme for legal Aid programme applicable throughout the country by which several legal aid and advice boards have been set up in the States and Union territories. CILAS was funded wholly by grants from the Central Government. The Government was accordingly concerned with the programme of legal aid as it is the implementation of a constitutional mandate. But on a review of the working of the CILAS certain deficiencies have come to the fore. It is, therefore, felt that it will be desirable to constitute statutory legal service authorities at the National, State and District levels so as to provide for the effective monitoring of legal aid programmes. The Bill provided for the composition of such authorities and for the funding of these authorities by means of grants from the Central Government and the State Governments. Power was been also given to the National Committee and the State Committees to supervise the effective implementation of legal aid schemes.[lvii]

CILAS paved a way for the legislative action to create a statutory space for legal aid in conformity with the 42nd Constitutional Amendment. However, until the Legal Services Authorities Act was enacted, the Supreme Court kept guiding the State machinery for fulfilling its Constitutional obligation of providing free legal services or free legal aid or free legal representation[lviii] to the poor and needy who did not have means to get legal representation in the court of law. In this regard, three cases in which Supreme Court upheld the Constitutional right to legal aid are worth recollection. These cases include:

Hussainara Khatoon v. Home Secretary, State of Bihar: In this case, reference was made to Article 39-A of the Constitution. A division bench of the Supreme Court of India held that:

[F]ree legal service is an inalienable element of ‘reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 [of the Constitution].’ This is ‘a constitutional right of every accused person who is unable to engage a lawyer and secure free legal services on account of reasons such as poverty, indigence or incommunicado situation.’ The State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, subject of course to the accused person not objecting to the providing of a lawyer.[lix]

Khatri (II) v. State of Bihar: The principles laid down in the case of Hussainara Khatoon v. Home Secretary, State of Bihar was later followed in this case. A division bench[lx] of the Supreme Court of India in this case observed that:

[T]he Judicial Magistrate did not provide legal representation to the accused persons because they did not ask for it. This was recorded to be unacceptable. The Apex Court went further and held that it was the obligation of the Judicial Magistrate before whom the accused were produced to inform them of their entitlement to legal representation at State cost. In this context, it was observed that the right to free legal services would be illusory unless the Magistrate or the Sessions Judge before whom the accused is produced informs him of this right. It would also make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services thereby rendering the constitutional mandate a mere paper promise.[lxi]

(c) Suk Das v. Union Territory of Arunachal Pradesh: The three judge’s bench of the Supreme Court of India in this case followed the dictum of Khatri (II) v. State of Bihar and observed that:

[T]he requirement of providing free and adequate legal representation to an indigent person and a person accused of an offence. Also, that an accused need not ask for legal assistance – the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid. It was now ‘settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 [of the Constitution].’[lxii]

Not just the Indian judiciary but also the US Courts have placed greater reliance on the philosophy of free legal service as an essential element of fair procedure. Such as, Justice Black observed the following:

Not only these precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice, any perm held into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed who fail to hire the beat lawyers they can get to prepare and present their defences. That Government hires lawyers to procedure and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him.[lxiii]

The combination of efforts of the Expert Committee on Legal Aid, CILAS and Indian judiciary in facilitating legal aid services to the poor and needy laid down a ground for the legislative action. Thus, the Parliament enacted the Legal Services Act in the year 1987 towards institutionalisation of legal aid program across the country. This Act was finally enforced on 9th November 1995 after certain amendments were introduced therein by Amendment Act of 1994.[lxiv] The then Chief Justice of India played a key role in the enforcement of the Act.[lxv] With an aim to make legal aid programme a success, the three judges bench[lxvi] of the Supreme Court of India held that in order to accomplish the object of social justice contemplated by Article 39 A of the Constitution of India, the State should encourage voluntary social service organisations to come forward and actively participate in legal aid programme so that benefit of justice would reach the common man more effectively and to a larger number.[lxvii] That is, in almost all they major welfare States in the world, it is the basic democratic value and tenet to protect the individual rights notwithstanding his standard of income or social class. Failing to keep up such democratic value would have far reaching consequences thereby resulting in justice becoming a luxury and available to a privileged few.[lxviii] It must be appreciated that the situation of crisis of legal services will not be remedied unless it is attacked as part of a broader problem of access to the justice system.[lxix]

Similar observation has been made by the Supreme Court of India that much is yet to be done in order to ensure that poor and disadvantaged communities can access justice efficiently. The division bench has categorically observed the following while appreciating the services till date rendered on the front of legal aid in the Indian context:

India is acclaimed for achieving a flourishing constitutional order, an inventive and activist judiciary, aided by a proficient bar and supported by the State. However, the Courts and Tribunals, which the citizens are expected to approach for redressal of their grievance and protection of their fundamental, constitutional and legal rights, are beset with the problems of delays and costs. In a country where 36 per cent of the population live below the poverty line, these deficiencies in the justice delivery system prevent a large segment of the population from availing legal remedies. The disadvantaged and poor are deprived of access to justice because of the costs of litigation, both in terms of actual expenses and lost opportunities, and the laudable goal of securing justice – social, economic and political enshrined in the Preamble to the Constitution of India remains an illusion for them. The infrastructure of Courts and the processes which govern them are simply inaccessible to the poor. The State, which has been mandated by Article 39A of the Constitution to ensure that the operation of the legal system promotes justice by providing free legal aid and that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, has not been able to create an effective mechanism for making justice accessible to the poor, downtrodden and disadvantaged. In last two and a half decades the institution of the legal services authorities has rendered yeoman’s service in the field of providing legal aid to the poor but a lot is required to be done for ensuring justice to economically deprived section of the society and those who suffer from other disabilities like illiteracy and ignorance.[lxx]

It must therefore be understood that failing to expedite the accessibility of free and quality legal services would be fatal for the justice delivery system by promulgating a sense of injustice amongst the disadvantaged groups and weaken the cherished constitutional and human right to equality.[lxxi] Indian Supreme Court has also noted that the poor and those ill equipped[lxxii] with the knowledge and understanding of law are in dire need of legal services, this would in turn lead to a for a wholesome development of the society. There cannot be any pretext of financial constraint or burden on public exchequer by the State to not comply with such growing concern of facilitating legal assistance to the indigent persons devoid of legal help.[lxxiii] Finally, it can be concluded that the most of the observations of the Supreme Court of India made during late 1970s and 1980s remains impervious of time in Indian context even in the new century when the country has started being recognised as an upcoming economic power.[lxxiv]

Nevertheless, although the legal aid program is still continuing at the taluka level, district level, state and the national level, access to justice for an ordinary villager is even today a distant reality and an unaccomplished dream. In order to make justice delivery services available to people at the grass-root, the Law Commission of India’s recommendation given way back in 1986[lxxv], was given effect in the form of Gram Nyayalayas Act in the year 2008. Given it a new law, we must briefly identify the objectives of Gram Nyayalayas Act through which this law aims to enhance access to justice for the people at the grass-root.

Gram Nyayalayas for Access to Justice at the Doorstep

The Indian legal history stands testimony that periodically the dismal scenario of justice dispensation has been studied, probed and analysed by several expert level committees since independence. Almost twelve such studies have been made by the Law Commission of India itself.[lxxvi] This subject took a final shape in the form of the 114th Report of the Law Commission on ‘Gram Nyayalayas’. In this report the Law Commission recommended for establishing such an institution as the first interface between the rural people and the justice delivery system of the country.[lxxvii] The Law Commission of India’s study clearly highlighted the rural poor as the worst victims of the existing justice delivery mechanism which is grappling with numerous challenges.[lxxviii]

Consequently, the institution of Gram Nyayalaya is seen as the State’s affirmative action of facilitating justice delivery to the rural poor who are most often distanced from such an access for reasons for geographical disadvantage, heavy court fees, cumbersome procedure and also the exorbitant fees charged by the lawyers.[lxxix] The objects and reasons of the Gram Nyayalayas Act of 2008 clearly outline that access to justice is the true spirit of this statue and aims to provide justice delivery services even to the farthest located last man or woman in the village. The objective of this law has been rightfully placed in the statute in the following words:

To provide for the establishment of Gram Nyayalayas at the grass-roots level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith or incidental thereto.

This law has envisioned in great details the scheme for facilitating access to justice to the village man and woman. In order to enhance the level of justice delivery services at the doorstep in keeping with its objective, the law mandates the establishment of one or more Gram Nyayalayas for every Panchayat at intermediate level.[lxxx] In furtherance of the same objective, organising mobile courts is one of the important mandates envisioned under the Gram Nyayalayas Act of 2008.[lxxxi] Very innovatively this law has mandated that mobile courts would be conducted where necessary to enhance the outreach of rural justice by this institution. The Gram Nyayalayas Act has also made clear provision to ensure that justice delivery is affordable by the people for whom the law was enacted. In this regard, the law provides levy as low as rupees one hundred a court fee for civil suits instituted before Gram Nyayalayas.[lxxxii] In order to facilitate resolution of disputes in an amicable manner, the law also provide that efforts shall be made by Gram Nyayalaya to assist, persuade and conciliate the parties in arriving at a settlement in respect of the disputes.[lxxxiii]

These significant provisions of Gram Nyayalayas Act indicate legislative attempt to re-structure the institutional mechanism at the grass-root level towards furthering the access to justice to a common man. Only the satisfactory implementation of this law by way of establishing Gram Nyayalayas at every Panchayat level followed by proper implementation of the above provisions would facilitate a concrete step towards fulfilling the objectives of this law[lxxxiv]. Mere 194 Gram Nyayalayas have been notified in India until 15th December 2016[lxxxv]. Thus, until greater number of Gram Nyayalayas will be established chances would remain slim for achieving the objectives of this law in ensuring justice delivery to the rural people at their doorstep.

Conclusion

Discourse on access to justice has travelled very far in more than 60 years of independent India but the debate is still alive and relevant. Several legislative as well as judicial efforts have been made in facilitating greater access to justice delivery by a common man even at the village level. The latest legislative action in this direction is undeniably the creation of structure of Gram Nyayalayas at the Panchayat level. The judgement of the Supreme Court of India in the case of Anita Kushwaha vs Pushap Sudan (2016) 8 SCC 509 this year has set the new tone for access to justice by declaring ‘access to justice as the fundamental right’. Now the formal declaration of this right under the aegis of Article 21 would hopefully pave a way for enhanced pressure on the State to expedite the establishment of Gram Nyayalayas across the country. Striving for access to justice is always a work in progress and each one of us shall remain committed to this agenda in our own creative ways.

[iv]Justice, in the sense of promoting equality, can be said to have two aspects namely, distributive justice and corrective justice. The purpose of distributive justice is to ensure a fair division of social benefits and burdens to all the members of the society. Establishment of distributive justice is primarily attained through constitution-making and by legislation. The job of the courts is primarily to apply the existing rules in order to establish corrective justice. The function of distributive justice is to ensure fairness when it comes to ‘division of social benefits’ and ‘burdens’ amongst the members of a society; Distributive justice thus seeks to secure a balance or equilibrium amongst the members of a society. The balance thus sought to achieve can be disrupted in a case, where ‘A’ a person goes on to wrongfully seize the property legally acquired by another person ‘B’. In such a situation the role of corrective justice comes in to establish a balance where disequilibrium has thus occurred.

[vi]The term ‘Justice’ in the Preamble of the Constitution of India refers to the political, social and economic aspects which are secured through Fundamental Rights and the Directive Principles of State Policy. Such constitutional promise of securing for all citizens social, economic and political justice, as enshrined in the preamble to the Constitution of India, is realized when the three organs of the state – legislature, executive and judiciary – join together in their efforts to find ways and means for providing the poor with equal access to the justice system.

[vii]The State shall secure that the operations of the legal system promote justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

[viii] In the case of Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, the Supreme Court further held that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered.

[xxv]QCOSS Policy Position, ‘Human Rights and Access to Justice’ [November 2009] Queensland Council of Social Service (QCOSS) 1 <https://www.qcoss.org.au/sites/default/files/QCOSS_Policy_Position_Nov_2009_Justice_and_Human_Rights_0.pdf>. accessed on 15 November 2015

[xxvi]The Sustainable Development Goals (SDGs) aim to significantly reduce all forms of violence, and work with governments and communities to find lasting solutions to conflict and insecurity. Strengthening the rule of law and promoting human rights is key to this process, as is reducing the flow of illicit arms and strengthening the participation of developing countries in the institutions of global governance. See generally, < https://www.undp.org/content/undp/en/home/mdgoverview/post-2015-development-agenda/goal-16.html> accessed on 20 November 2015

[xxix] International Covenant on Civil and Political Rights, Article 14 [Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and entry into force 23 March 1976]:

“1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

[xxx]Rights of the Accused of Rome Statute of the International Criminal Court, Article 67 [Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, Entry into force: 1 July 2002]:

“1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;

(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence;

(c) To be tried without undue delay;

(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;

(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;

(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;

(h) To make an unsworn oral or written statement in his or her defence; and

(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.

In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.”

[xxxi]Right to a Fair Trial, Article 6 “ (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

[xxxii] Universal Declaration of Human Rights, Article 10 “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 General Assembly resolution 217 A as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected, see generally < https://www.un.org/en/universal-declaration-human-rights/> accessed on 25 November 2015

[xlvi]Legal Department, Government of Bombay, Report of the Committee on Legal Aid and Legal Advice in the State of Bombay (1950) in Oliver G. Koppell, ‘Legal Aid in India’, (1966) 8 J. of The Indian Law Institute 25

[xlvii]Oliver G. Koppell, ‘Legal Aid in India’, (1966) 8 J. of The Indian Law Institute 224-225. (Bhagwati was then a judge of the Bombay High Court)

[xlviii]See generally, Norman S. Marsh, The Rule of Law in a Free Society (International Commission of Jurists 1959)

[lii]The Ministry of Law, Justice and Company Affairs, Department of Legal Affairs of Government of India constituted the Expert Committee on Legal Aid in 1972. The committee was asked to consider the question of making available legal advice and legal aid “to the weaker sections of the community” and to “persons of limited means in general and citizens belonging to the socially and educationally backward classes in particular”.

[liv]The Report is titled: “Processual Justice to the People” (May 1973). Hereafter, it will be referred to simply as the Legal Aid Expert Committee Report, both in the text and notes. The Report was submitted in a very short time; in-deed, the speed is remarkable considering the wide-ranging terms of reference.

[lv] Upendra Baxi, ‘Legal Assistance to the Poor: A Critique of the Expert Committee Report’ (1975) Economic and Political Weekly 1005

[lxxvii]See generally, the Law Commission of India in its Law Commission of India, Gram Nyayalaya (Law Com No 114, August 1986) Chapter 3

[lxxviii] Unmanageable backlog of cases, mounting arrears and inordinate delay in disposal of cases in courts at all levels—lowest to the highest—coupled with exorbitant expenses—have attracted the attention of not only the members of the Bar, consumers of justice (litigants), social activist, legal academics and Parliament but also the managers of the courts. This was noted by the Law Commission of India in its Law Commission of India, Gram Nyayalaya (Law Com No 114, August 1986) Chapter 3.

For the purpose of exercising the jurisdiction and powers conferred on a Gram Nyayalaya by this Act, the State Government, after consultation with the High Court, may, by notification, establish one or more Gram Nyayalayas for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level in any State, for a group of contiguous Gram Panchayats

“Nyayadhikari to hold mobile courts and conduct proceeding in villages

(1) The Nyayadhikari shall periodically visit the villages falling under his jurisdiction and conduct trial or proceedings at any place which he considers is in close proximity to the place where the parties ordinarily reside or where the whole or part of the cause of action had arisen:

Provided that where the Gram Nyayalaya decides to hold mobile court outside its headquarters, it shall give wide publicity as to the date and place where it proposes to hold mobile court.

(2) The State Government shall extend all facilities to the Gram Nyayalaya including the provision of vehicles for holding mobile court by the Nyayadhikari while conducting trial or proceedings outside its headquarters.”

[lxxxii] See Gram Nyayalayas Act, 2008, s 24 (1). This low cost court fee would in no case be exorbitant to the litigants and would also allow the Gram Nyayalayas to meet out its administrative charges towards such applications filed by the litigants.

In every suit or proceeding, endeavour shall be made by the Gram Nyayalaya in the first instance, where it is possible to do so, consistent with the nature and circumstances of the case, to assist, persuade and conciliate the parties in arriving at a settlement in respect of the subject matter of the suit, claim or dispute and for this purpose, a Gram Nyayalaya shall follow such procedure as may be prescribed by the High Court.

[lxxxiv] As per the information given by the former Union Law & Justice Minister Shri D.V. Sadananda Gowda in reply to a written question in the Lok Sabha on 9th March, 2015, a total of 194 Gram Nyayalayas were established and notified in 10 States in India. The break up of such notified Gram Nyayalayas include- 89 in Madhya Pradesh; 45 in Rajasthan; 2 in Karnataka; 16 in Odisha; 18 in Maharashtra; 6 in Jharkhand; 2 in Goa; 2 in Punjab; 2 in Haryana; 12 in Uttar Pradesh. Available at <https://pib.nic.in/newsite/PrintRelease.aspx?relid=116631> accessed 15 December 2016